OPINION: Native American Children Are Suffering Thanks To Racist Federal Law

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Timothy Sandefur Goldwater Institute
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Every day in America, children are born to parents who are unable to care for them. Many end up homeless or in dangerous circumstances. But others are fortunate enough to find foster families and adoptive parents who are willing to open their homes and their hearts. Two-year-old Albert (not his real name) was one such child. In fact, when his foster parents decided to adopt him, his birth parents agreed. “I would love for him to stay with the foster parents,” his biological father told a Texas judge. They are “the only parents he knows.”

But there was a problem: Albert was of a Native American ancestry. That didn’t bother his foster parents — but it bothered the federal government. In fact, thanks to the 1978 Indian Child Welfare Act (ICWA), it meant that tribal governments in Oklahoma and New Mexico could block the adoption from going forward. The law imposes racially discriminatory restrictions that bar states from protecting Indian children from harm, and all but forbids their adoption by adults of other races.

ICWA doesn’t apply on reservations — only to off-reservation children — and it isn’t limited to members of tribes. Unlike other laws dealing with Native Americans, ICWA applies to children who are “eligible” for tribal membership — even if they never become member. Eligibility, in turn, depends exclusively on biological ancestry. That means a white or black child adopted by a Native family, who practices tribal customs, speaks a tribal language, and lives on tribal lands, would still not qualify as “Indian” under ICWA, because she doesn’t fit the racial profile.

On the other hand, a child like Albert — who has no social, cultural, or political connection to a tribe at all — who may have no idea he’s Indian — does qualify, based solely on the blood in his veins.  

ICWA also imposes separate rules for child welfare cases involving “Indian children” — rules that are less protective than the laws that apply to other kids. For example, when a child of another race is abused, state officials can place him in foster care with a family that can protect him, regardless of their ethnicity. But Indian children must be placed in foster care with other “Indian” adults, even if they’re of an entirely different tribe. It also mandates that Indian children be adopted by “Indian” families, regardless of tribe, rather than by adults of other ethnicities. That means an Inuit child must be placed with a Seminole family instead of a white or black family — despite the enormous differences between those two tribes’ histories and cultures.

The act also makes it harder to protect Indian kids from harm. If parents abuse a white child, the government can rescue her if it shows “clear and convincing” evidence of harm. But for an Indian child, it must prove abuse “beyond a reasonable doubt” and pay expert witnesses to testify. And while the law requires states to make “reasonable efforts” to rehabilitate families in crisis, the law requires states to make “active efforts” instead.

What’s the difference? “Reasonable efforts” aren’t required if parents are molesting the child or drug addicted — but “active” efforts do apply in those cases. As a result, Indian kids must be returned time and again to parents who have mistreated them — meaning that state officials often know Indian kids are being abused and can’t do anything about it. Last year, after a 1-year-old Arizona boy named Josiah was murdered by his mother, officers took the unusual step of publicly announcing that they had known he was being abused but had been barred from acting by the law.  

Last year, Albert’s foster parents, along with attorneys general in three states, filed a lawsuit challenging ICWA as unconstitutional — and a federal judge agreed with them: Not only does the law discriminate based on race, but it also unconstitutionally overrides the authority of state officials who have a legal and moral duty to protect at-risk children within their borders. That case, now on appeal, has set the stage for a showdown between tribes, states, and the federal government over a question that shouldn’t be hard to answer: Which matters more: kids, or the color line?

Timothy Sandefur is vice president for litigation at the Goldwater Institute, which filed a friend of the court brief in the Brackeens’ case.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.